The Massachusetts State Senate has passed a bill that would essentially codify the harmful campus sexual assault policies written into federal regulations under President Barack Obama. California Gov. Jerry Brown recently vetoed a similar bill.
The Massachusetts bill isn’t much different than policies the Obama administration enacted in 2011 and have since been rescinded by U.S. Education Secretary Betsy DeVos. These guidelines enshrine unfairness for students accused of sexual assault. While colleges were told what they must provide for accusers, they weren’t told what they needed to provide for the accused, other than a “fair” proceeding. This led to remarkably unfair playing fields for both parties.
The Massachusetts bill simply restates most of the Obama-era guidance, that both sides need equal access to an advocate or lawyer and presenting evidence. The problem is that under the Obama rules there were no repercussions for schools that only allowed accusers these resources, unless the accused student could afford to sue the school.
The bill also provides some things for accusers that it does not for the accused, such as a “confidential resource officer” who will tell the accuser about counseling and accommodations. These accusations can be extremely stressful, especially for an innocent person. Many accused students have needed counseling (and have attempted or committed suicide).
Prosecution Based on Anonymous Complaints
The part of the bill that hurts due process the most, however, is allowing accusers to report anonymously. Unless a school only provides accommodations for the accuser (which may be the case), it should not be able to prosecute an accused student without him or her even knowing what the accusation is or who is making it.
Regarding Brown’s veto, he wrote he was “not prepared to codify additional requirements in reaction to a shifting federal landscape, when we haven’t yet ascertained the full impact of what we recently enacted.” He was referring to California’s adoption of a “yes means yes” definition of consent for sexual encounters, which basically turns sex into an impossible question-and-answer session. That, coupled with the campus culture the Obama administration’s rules fostered, made it more likely that a false accusation would occur and an accused student would be railroaded.
If Massachusetts enacts this bill, it would be disastrous for students in the state. Considering that two of the worst cases of accused students getting railroaded by school officials happened in the Bay State, it should take extreme care not to ensure more lawsuits.
These Two Massachusetts Cases Are Not Anomalies
At Brandeis University in Waltham, Mass., a gay student was accused by his ex-boyfriend of repeated sexual assault throughout their consensual relationship. The accuser claimed the whole relationship began with sexual assault, because the accused didn’t use the “yes means yes” standard of consent. The accuser also claimed his ex-boyfriend sexually assaulted him by waking him up in the morning with a kiss, or when watching him shower—things the accuser also did to the accused and that often occur in romantic relationships.
Brandeis ignored the whole “committed relationship” part of the accusation, and the fact that the accusation only came after the breakup and after the accused started dating a man the accuser fancied. It expelled the accused student. He sued.
Then there’s the University of Massachusetts-Amherst, still one of the most egregious cases of abuse against an accused student I’ve ever seen. The complaint came nearly two years after the sexual encounter, in which the accuser performed oral sex on the accused student, who was blacked out. The accuser claimed she had invited over a friend after the event because she was distraught. In reality, she invited over another man she had wanted to have sex with earlier in the night.
She also claimed she texted another friend because she was distraught, but Amherst never asked for those messages. When they finally surfaced, they showed the accuser was just upset her roommate would be mad at her because the accused student was the roommate’s boyfriend. The accused also sued and won a settlement from the school.
The Massachusetts bill now heads to the state House for a vote. Hopefully it will either die there or ultimately get vetoed by Republican Gov. Charlie Baker. Many of the provisions in the bill are good for accusers, but any new laws need to spell out due process protections for accused students. Otherwise, schools will continue to feel free to railroad those accused of sexual assault.